Académique Documents
Professionnel Documents
Culture Documents
v.
The undersigned counsel of record certifies that the following listed persons
and entities, as described in the fourth sentence of Rule 28.2.1 have an interest in
the outcome of this case. These representations are made in order that the Judges of
Attorney for Bernard Lyle Matthews, III Bernard Lyle Matthews, III
Green and Matthews, LLP
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s/ Adraon D. Greene
Adraon D. Greene
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Featherston”) submit that oral argument is unnecessary and would not be beneficial
in this matter. Specifically, the facts and legal arguments are adequately presented
in the briefs and the record, and would not be significantly aided by oral argument.
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TABLE OF CONTENTS
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CONCLUSION ............................................................................................................. 19
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TABLE OF AUTHORITIES
Cases
Allstate Ins. Co. v. Plambeck, 802 F.3d 665 (5th Cir. 2015) ...................................15
Alpert v. Crain, Caton & James, P.C., 178 S.W.3d 398 (Tex. App.—Houston [1st
Dist.] 2005, pet. denied...........................................................................................8
Anderson v. United States HUD, 554 F.3d 525 (5th Cir. 2008) ................................7
Anza v. Ideal Steel Supply Corp., 547 U.S. 451 (2006) ...........................................15
Bridge v. Phoenix Bond & Indemn. Co., 553 U.S. 639 (2008)................................15
Bustos v. Martini Club Inc., 599 F.3d 458 (5th Cir. 2010)........................................7
Campbell v. Brender, 2010 WL 4363396 (N.D. Tex. Oct. 25, 2010) .............. 13, 14
Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477 (Tex. 2015) ...............................8, 11
Castro v. Collecto, Inc., 634 F.3d 779 (5th Cir. 2011) ..............................................7
Dardar v. Lafourche Realty Co., Inc., 985 F.2d 824 (5th Cir. 1993) ........................9
Ferrer v. Chevron Corp., 484 F.3d 776 (5th Cir. 2007) .............................................7
Gil Ramirez Grp., L.L.C. v. Houston Indep. Sch. Dist., 786 F.3d 400 (5th Cir.
2015) .....................................................................................................................15
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Health Care Serv. Corp. v. Methodist Hosps. of Dall., 814 F.3d 242 (5th Cir. 2016)
................................................................................................................................9
Hemi Grp., LLC v. City of New York, 559 U.S. 1 (2010) ........................................15
Price v. Pinnacle Brands, Inc., 138 F.3d 602 (5th Cir. 1998) .......................... 14, 15
Sheshtawy v. Gray, No. 17-20019, 2017 WL 4082754 (5th Cir. Sept. 14, 2017) . 16,
18, 19
Smith v. Lonestar Const., Inc., 452 F. App’x 475 (5th Cir. 2011) ......................9, 10
Toles v. Toles, 113 S.W.3d 899 (Tex. App.—Dallas 2003, no pet.) .......................11
Troice v. Proskauer Rose, L.L.P., 816 F.3d 341 (5th Cir. 2016).............................11
United States v. Scroggins, 599 F.3d 433 (5th Cir. 2010) ................................ 11, 13
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STATEMENT OF JURISDICTION
Louise Curtis and Rik Wayne Munson’s (hereinafter “Appellants”) claims against
Appellees Mendel and Featherston are barred by the attorney immunity doctrine.
its inherent authority. The District Court also correctly concluded that Appellants
lack standing to assert a claim under the Racketeering Influenced and Corrupt
RICO claim against Appellees Mendel and Featherston, the District Court correctly
held that Appellants’ failed to plead sufficient facts to state a claim. This Court
has jurisdiction pursuant to 28 U.S.C. § 1291, because the District Court’s May 16,
2017 Order dismissing Appellants’ Complaint on the foregoing grounds was a final
judgment.
immunity doctrine bars Appellants’ RICO claims against Appellees Mendel and
Featherston.
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4. Whether the District Court properly held that Appellants did not plead
sufficient facts to state a claim under Federal Rule of Civil Procedure 12(b)(6).
I. PROCEDURAL BACKGROUND
On July 5, 2016, Appellants, who are pro se litigants, filed suit against
to suing Appellees Mendel and Featherston, Appellants sued nine (9) other
attorneys, two (2) probate judges, and a court reporter for alleged violations of the
RICO Act that arose from an underlying probate proceeding in Harris County
partner with overlapping business activities; however, he was not a party in the
the motion to dismiss. The District Court entered an Order dismissing Appellants’
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A. Appellants’ Allegations
As the District Court stated in its May 16, 2017 Order, Appellants’
Complaint “assert[s] almost fifty ‘claims’ against more than fifteen [appellees]”
which consist of “fantastical allegations that some or all of the [Appellees] are
Probate Mafia.’” [ROA.3330]. Appellants’ “claims rest on the assertion that this
“Theft/Hobbs Act Extortion Texas Penal Codes § 31.02 & 3.03 and
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1985” [ROA.58].
However, the purported “causes of action” are not supported by any factual
several Houston area law firms and Harris County Probate Court No. 4 allegedly
themselves. [ROA.29, 35, 41]. Appellants refer to this alleged entity as the
“Harris County Tomb Raiders, a/k/a the Probate Mafia.” [ROA.29]. Appellees
address the District Court’s correct dismissal pursuant to the attorney immunity
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doctrine and the District Court’s proper dismissal of a “frivolous” Complaint under
its inherent authority. Therefore, Appellants have waived appellate review of both
of these issues and the District Court’s dismissal on these grounds should be
affirmed.
To the extent the Court requires Appellees Mendel and Featherston to fully
brief these issues despite Appellants’ waiver, the District Court correctly
determined that Appellants’ claims are barred by the attorney immunity doctrine.
error and the District Court’s dismissal based on the attorney immunity doctrine
If the Court concludes that Appellants did not waive appellate review of the
attorney immunity doctrine, their claims are nonetheless barred by the doctrine.
The actions taken by Appellees Mendel and Featherston were performed pursuant
to their representation of their client in a probate matter. Under Texas law, those
Complaint nor their Brief contains any well-pleaded facts or legal authority to the
contrary. Therefore, the District Court’s dismissal based on the attorney immunity
to its inherent authority. Appellants also waived this issue when they failed to
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address it on appeal. The District Court’s Order should be affirmed on this ground
alone. Even if the Court concludes that Appellants did not waive appellate review
of this issue, the District Court correctly concluded Appellants’ claims are
This Court should also affirm the District Court’s ruling that Appellants lack
the alleged RICO violations. In this regard, Appellants’ Brief suffers the same
fatal flaw as their Complaint; it fails to allege any specific facts attributable to
facts to establish standing to sue Appellees Mendel and Featherston for alleged
RICO violations.
The District Court’s ruling that Appellants failed to plead sufficient facts to
state a cause of action against Appellees Mendel and Featherston under Federal
contains nothing but conclusory allegations that merely recite the elements of
For all of the foregoing reasons, the District Court should be affirmed.
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I. STANDARD OF REVIEW.
Collecto, Inc., 634 F.3d 779, 783 (5th Cir. 2011). The court accepts all well-
pleaded facts as true and views those facts in the light most favorable to the
plaintiff. Toy v. Holder, 714 F.3d 881, 883 (5th Cir. 2013) (citing Bustos v.
Martini Club Inc., 599 F.3d 458, 461 (5th Cir. 2010)). The court need “not accept
conclusions.” See Ferrer v. Chevron Corp., 484 F.3d 776, 780 (5th Cir. 2007).
matters, accepted as true, to state a claim for relief that is plausible on its face.
Toy, 714 F.3d at 883. Plausibility requires “more than an unadorned, the-
678 (2009). A complaint must do more than name laws that may have been
violated. Anderson v. United States HUD, 554 F.3d 525, 528 (5th Cir. 2008). A
complaint must also allege facts regarding what conduct violated those laws. Id.
entitlement to relief where it pleads facts that are merely consistent with a
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The District Court correctly concluded that Appellants’ claims are barred by
from civil liability to non-clients for actions taken in connection with representing
a client in litigation.” Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex.
2015) (quoting Alpert v. Crain, Caton & James, P.C., 178 S.W.3d 398, 405 (Tex.
App.—Houston [1st Dist.] 2005, pet. denied)). Appellants’ Brief does not dispute
this as it fails to cite any legal authority to the contrary. In fact, the phrase
Appellants have waived the issue of whether Appellees Mendel and Featherston’s
Consequently, Appellants waived any argument that the District Court erred in
holding that the attorney immunity doctrine bars their claims. Even if the issue
was not waived, the attorney immunity doctrine nonetheless bars Appellants’
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contend that the District Court erred in ruling that attorney immunity bars
does not contain any legal authority regarding attorney immunity. See Appellants’
Brief, at 28-29. In fact, Appellants’ Brief does not even contain the phrase
an issue in its initial brief constitutes a waiver of the right to appellate review of
that determination. Health Care Serv. Corp. v. Methodist Hosps. of Dall., 814
F.3d 242, 252 (5th Cir. 2016). This Court looks to an appellant’s initial brief to
determine the adequately asserted bases for relief. See Cinel v. Connick, 15 F.3d
1338, 1345 (5th Cir. 1994). Additionally, “[q]uestions posed for appellate review
Inc., 452 F. App’x 475, 476 (5th Cir. 2011) (quoting Dardar v. Lafourche Realty
represented by counsel, pro se parties must still brief the issues and reasonably
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comply with the standards of Rule 28.’” Id. (quoting Grant v. Cuellar, 59 F.3d
523, 524 (5th Cir. 1995)). Thus, where a pro se appellant “fails . . . to set forth
reasons why the district court’s judgment was incorrect,” the court may “conclude
that any arguments attacking the district court’s judgment have been abandoned on
immunity doctrine on appeal. Likewise, Appellants failed to assert that the District
Court erred in holding that attorney immunity bars their claims. As a result,
that “[t]hese RICO claims are not dealing with attorney or judicial error, and are
Because Appellants failed to raise this issue on appeal, they have abandoned
it. See Cinel, 15 F.3d at 1345 (“An appellant abandons all issues not raised and
argued in its initial brief on appeal.”); see also United States v. Scroggins, 599
1
However, Appellants specifically attempted to address the issue of “judicial
immunity.” See Appellants’ Brief at pp. 28-29.
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F.3d 433, 447 (5th Cir. 2010). As a result of Appellants’ waiver, the District
Court’s ruling that Appellants’ claims are barred by the attorney immunity doctrine
should be affirmed.
The District Court properly held that Appellees Mendel and Featherston,
who are attorneys, are entitled to immunity from Appellants’ claims. Therefore,
even if this Court reaches the attorney immunity issue, the District Court correctly
determined that Appellants’ claims against Appellees Mendel and Featherston are
barred by the attorney immunity doctrine and this Court should affirm that ruling.
immunity from suit,” and not merely “a defense to liability.” Troice v. Proskauer
Rose, L.L.P., 816 F.3d 341, 346-348 (5th Cir. 2016). It insulates the attorney from
liability and prevents the attorney from being exposed to discovery and/or trial. Id.
underlying suit’ is not actionable if it is ‘part of the discharge of the lawyer’s duties
in representing his or her client.’” Byrd, 467 S.W.3d at 481 (Tex. 2015) (quoting
Toles v. Toles, 113 S.W.3d 899, 910-11 (Tex. App.—Dallas 2003, no pet.)). The
11
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that Appellees Mendel and Featherston engaged in any conduct outside of their
facts supporting the delusional scenario articulated in their Complaint, must less
any facts giving rise to a plausible claim for relief.” [ROA.3334]. The District
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Appellants did not address the District Court’s dismissal under its inherent
power; thereby waiving any argument to the contrary. Scroggins, 599 F.3d at 447.
As discussed supra, by failing to brief the issue on appeal, Appellants have waived
and abandoned the issue. See Cinel, 15 F.3d at 1345. As a result, the District
Appellants’ Complaint. A district court has the “inherent authority to dismiss a pro
4363396, at *4 (N.D. Tex. Oct. 25, 2010) (“District Courts have the inherent
even when the plaintiff has paid the required filing fee.”); see also Neitzke v.
Williams, 490 U.S. 319, 325 & 328 (1989) (holding a complaint is “frivolous” and
courts must determine whether the facts alleged are ‘clearly baseless,’ meaning
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[ROA.3334].
Appellants do not rely on any legal authority to refute the foregoing. Rather,
advocacy” through the “probate mafia.” [ROA.38, 95]. Therefore, the District
Appellants lack standing to pursue civil RICO claims because they did not
plead a recognizable injury. See Price v. Pinnacle Brands, Inc., 138 F.3d 602, 697
(5th Cir. 1998). In its Order, the District Court correctly concluded that Appellants
“fail[ed] to plead any facts establishing they have standing under § 1964(c) to
assert civil RICO claims against any of the [Appellees] because [Appellants] fail to
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affirmed.
The RICO statute provides in pertinent part that “[a]ny person injured in his
1964(c). To establish standing, a RICO plaintiff “must show that the [RICO]
violation was a but-for and proximate cause of the injury.” Allstate Ins. Co. v.
Plambeck, 802 F.3d 665, 676 (5th Cir. 2015) (citing Bridge v. Phoenix Bond &
between the conduct and the harm” Hemi Grp., LLC v. City of New York, 559 U.S.
1, 9 (2010). See also Plambeck, 802 F.3d at 676. The injury must be “conclusive”
and cannot be “speculative.” Gil Ramirez Grp., L.L.C., v. Houston Indep. Sch.
Dist., 786 F.3d 400, 409 (5th Cir. 2015). “Injury to mere expectancy interests or to
an ‘intangible property interest’ is not sufficient to confer RICO standing.” See Gil
Ramirez Grp., L.L.C., 786 F.3d at 409 (quoting Pinnacle Brands, 138 F.3d at 607).
A party cannot show that it has standing to assert a RICO claim when the
alleged injury resulted from non-culpable conduct and what part resulted from a
RICO violation. See Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 459-60
(2006).
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County Probate Court No. 1, two judges and other parties were members of a
RICO conspiracy based on the allegation that the judges always ruled against the
Plaintiffs. 2016 WL 5871463, at *1-2. The District Court dismissed the matter
pursuant to Rule 12(b)(6), because plaintiffs’ allegations were “pure zanyism.” Id.
at *4. This Court recently affirmed the dismissal. See Sheshtawy v. Gray, No. 17-
20019, 2017 WL 4082754, at *1 (5th Cir. Sept. 14, 2017) (per curiam) (“[W]e
affirm the district court’s determination that Plaintiffs lack RICO standing.”).
Specifically, this Court held “Plaintiffs lack standing to pursue their RICO
claims because they have failed to allege a direct, concrete, and particularized
their injury comes in the form of financial losses to their property interests in their
respective probate proceedings. However, the alleged injury to their share of the
estate or trust is merely an expectancy interest that is too speculative and indirect
because their purported injury is also too speculative and indirect to satisfy RICO
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could only suffer indirect harm or harm to an expectancy interest as she contends
she has been deprived of the enjoyment of her beneficial interests in a family trust.2
affirmed.
Appellants failed to allege any facts that state a cause of action against
anything close to a plausible claim for relief against any of the alleged
[ROA.3332].
2
It is undisputed that Appellant Munson is not a named beneficiary of the trust;
therefore, he cannot even suffer indirect harm.
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Appellants’ Brief does not cite to or rely on any facts upon which a cause of action
can rest. Notably, Appellants’ fail to mention Appellees Mendel and Featherston
Appellants fail to point to a single well-pleaded fact that could support any
unsupported by any sufficient factual assertions to state a valid claim for relief.
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Specifically, Appellants claim
various causes of action without providing any factual support for their allegations.
[ROA.25-72].
v. Foufas, 867 F.2d 877, 880 (5th Cir. 1989) (recognizing that each
element of a RICO claim is a term of art which requires particularity).
A review of Plaintiffs’ amended complaint shows that, as in Elliott,
Plaintiffs “substantially rescript [ ] the language of the statute in
conclusory form,” and fail to sufficiently plead any RICO causes of
action. See id.; see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). On appeal, Plaintiffs simply make conclusory assertions that
their complaint is sufficient to survive a motion to dismiss and cite to
their entire complaint as evidencing the sufficiency.
Id. Thus, this Court has already provided guidance on these types of claims.
Specifically, the Court in Sheshtawy noted, “[T]he district court also dismissed
Plaintiffs’ RICO claims for failure to state a claim under Rule 12(b)(6). Although
we need not address it, we would affirm on this basis as well.” Id. at *2 n.4.
Therefore, the District Court’s dismissal under Rule 12(b)(6) is proper and should
CONCLUSION
request that the Court affirm the District Court’s judgment in their favor, in all
respects, as well as grant all such other and further relief to which Appellees
3
Similarly, in Freeman v. Texas, the Southern District of Texas rejected claims by
two pro se plaintiffs who alleged that a “probate court enterprise comprised of judges and
lawyers” had “‘virtually looted’ his mother’s homestead.” Freeman v. Texas, 2008 WL 4155346,
at *2 (S.D. Tex. Sept. 2, 2008). The District Court held that the plaintiffs’ allegations “fail[ed] to
state a ‘racketeering activity’ because Plaintiffs failed to allege sufficient facts to raise a
colorable claim that any violation of one of the numerous criminal statutes constituting
racketeering activity has occurred.” Id.
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Respectfully submitted,
s/ Adraon D. Greene
Adraon D. Greene
TBN: 24014533
agreene@gallowaylawfirm.com
Kelsi M. Wade
TBN: 24088597
kwade@gallowaylawfirm.com
GALLOWAY, JOHNSON, TOMPKINS,
BURR & SMITH
1301 McKinney St., Suite 1400
Houston, Texas 77010
Tel.: (713) 599-0700
Fax.: (713) 599-0777
20
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CERTIFICATE OF SERVICE
I certify that on October 10, 2017, an electronic copy in PDF text searchable
October 10, 2017, a true and correct copy of the brief was served by electronic case
filing or via certified mail on the counsel of record or pro se parties listed below.
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Andrew L. Johnson
Thompson, Coe, Cousins & Irons, LLP Via Electronic Filing
One Riverway, Suite 1400
Houston, Texas 77056
s/ Adraon D. Greene
Adraon D. Greene (TBN: 24014533)
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CERTIFICATE OF COMPLIANCE
Respectfully submitted,
s/ Adraon D. Greene
Adraon D. Greene
TBN: 24014533
agreene@gallowaylawfirm.com
Kelsi M. Wade
TBN: 24088597
kwade@gallowaylawfirm.com
GALLOWAY, JOHNSON, TOMPKINS,
BURR & SMITH
1301 McKinney St., Suite 1400
Houston, Texas 77010
Tel.: (713) 599-0700
Fax.: (713) 599-0777
23